BERE J: It is an
ambitious claim. On 9 April 2010 the plaintiff issued summons in this Court
seeking delivery of ten tobacco bulk curers and a payment of US$191 250-00
being damages caused by the alleged failure to deliver the tobacco curers by
the defendant.
The agreed facts
were that the plaintiff and the defendant entered into a sale agreement for the
ten bulk tobacco curers. There was no agreement between the parties as to
whether or not the defendant delivered the merx. The defendant alleged he had
taken all reasonable steps to ensure the plaintiff had access to the curers
whereas on the other hand the plaintiff felt the defendant had not done enough
to facilitate delivery of the moduros.
At the
conclusion of the matter it became clear to all the parties involved that there
was nothing of substance placed before the Court to justify the claim for
damages which had been pegged at US$191 250-00. I wish to state in passing
though that a claim for damages should not be left to the Court to indulge in
speculation in an attempt to ascertain the figure. A party seeking damages must
endeavour to put before the Court all the necessary evidence to justify the
amount claimed. There can be no short cut to this approach. Dreaming of figures
and throwing them in the trial will not suffice. In a recent Supreme Court
judgment their Lordships aptly summed up the correct legal position when they
stated as follows:-
"In Ebrahim v Pittman N.O. 1995(1) ZLR 176H, 187C-D BARTLETT J quoted with
approval the remarks of BERMAN J in Aarons
Whale Trust v Murray and Roberts Ltd
& Anor 1992(1) SA 652(c), 655H-656F that:
'Where
damages can be assessed with exact mathematical precision, a plaintiff is
expected to adduce sufficient evidence to meet this requirement. Where, as is
the case here, this cannot be done, the plaintiff must lead such evidence as is
available to it (but of adequate sufficiency) so as to enable the Court to
quantify his damage to make an appropriate award to his favour. The court must
not be faced with an exercise in guess work; what is required of a plaintiff is
that he should put before the Court enough evidence from which it can, albeit
with difficulty compensate him by an award of money as a fair approximation of
his mathematically unquantifiable loss"..
In
the instant case, the plaintiff speculated about his projected loss,
unsupported by any meaningful
independent evidence. The undated exh 2 was of no assistance at all. After
directed probing by the Court the plaintiff's counsel conceded that there was no
justification at all in the Court awarding the plaintiff the amount claimed as
damages or any amount at all under this heading. I am satisfied beyond any
shadow of doubt that this claim must be dismissed.
It
was imperative for the plaintiff in laying the foundation of his claim to lead
evidence to convince the Court that the defendant had failed to deliver the
tobacco curers.
In
his testimony which was not disputed by the plaintiff, the defendant told the
Court that delivery was made at the time the contract was concluded when the
defendant pointed out the tobacco curers to the plaintiff who undertook to come
and physically collect the bulky items. The witness was certainly speaking to
delivery longa manu.
It
will be necessary at this stage to restate the legal position as perceived by
the Court. Delivery in this regard has been authoritatively spoken by R.
Sharrock
when he stated as follows:-
For
delivery to take place longa manu the
transferor must (1) point the thing out to the transferee so that he (and he
alone) can exercise physical control over it. This form of delivery is often
employed where the size, weight or nature of the thing to be delivered makes
physical delivery difficult or inconvenient, eg where the thing is a large load
of timber, stones in a quarry or a herd of cattle".
A
similar further observation is again emphasized by the same author R Sharrock
when he teamed up with A Borrowdale in
the following words:
The
seller must give the purchaser or to be more precise allow the purchaser to
take, free possession of the res vendita
together with its accessories, appurtenances and fruits.
This
must be done -
(i)
In the case of specified goods, i.e
goods which have been physically identified (mentally or ocularly), at the
place where the goods were situated when the contract was concluded"(a)
The
two authors went on to say that:-
"If
loading and transportation is necessary it is the purchaser's responsibility.
The seller is obliged to place the res
vendita in a deliverable state so that the purchaser is able to take free
possession of it. Thus for instance, in a sale of immovable the seller must
free the property from all encumbrances"(b)
A
further observation is also made that:
"Thus
if the purchaser is deprived of or disturbed in his possession as a result of
an expropriation or the activities of squatters or a thief this does not amount
to eviction because the deprivation or disturbance does not flow from any flow
in the seller's title".
In
the instant case both the defendant and his administration manager at the time,
Artwell Kariwo testified that they did everything that was reasonably expected
of them to place the nine remaining moduros within the plaintiff's
accessibility. The two testified that the first tobacco curer was delivered
without difficulty, and this aspect was not denied by the plaintiff. As regards
the remaining nine curers, Mr Kariwo testified that he went out of his way by
seeking the assistance of the police officers to facilitate the plaintiff's
access to the curers and expressed surprise that the plaintiff expected him to
have done more than he did.
The
cumulative effect of the two witnesses' testimony was to the effect that
delivery had been done through longa manu
and in all fairness the plaintiff did not successfully counter this
explanation.
The
basis of the plaintiff's case was that those he sent to collect the moduros
were prevented from having access to where the moduros were by a group of
people who teamed up to prevent collection. It was clear that the plaintiff had
neither instigated this obstruction nor had anything to do with these
individuals. It was impossible for the plaintiff to successfully controvert the
story told by the defendant and his sole witness.
It
occurs to the Court that once the moduros had been pointed out to the plaintiff,
it was incumbent upon the plaintiff to put up a virillis effort in collecting those moduros and if possible to take
legal action against the individuals who were obstructing him in collecting
them and not to expect the defendant to do more than he did.
In
this regard I derive comfort in leaning on the views of Lee and Honare
when they remarked that;
In
this regard I derive comfort in leaning on the views of Lee and Honare when
they remarked that:
"If
the purchaser is threatened with eviction by a third party he should not
voluntarily hand over the thing sold to this third party unless the latter's
title is clear not only as against the purchaser but also against the seller".
In
casu the evidence led and accepted by
the Court pointed to a situation where
some unruly individuals backed by some
ill informed politician threatened the plaintiff who did not offer any virilis defence to the threat even when
the defendant's administrator went out of his way to seek police protection for
the plaintiff to enable unhindered collection of the moduros which were
confirmed by a Ministry of Lands Official to be outside the ambit of State
property.
In
conclusion, I am more than satisfied that the respondent did all that was
reasonably expected of him to effect delivery of the moduros and that he has no
case to answer.
The
plaintiff's case is dismissed with costs.
Musunga
& Associates, plaintiff's legal practitioners
Mwonzora & Associates, defendant's legal
practitioners
